Lee v. Carroll

• Citation: 146 So.2d 242
• Decision Date: 05 November 1962
• Docket Number: No. 659,659
• Parties: Paul O. LEE, Plaintiff-Appellant, v. Egan N. CARROLL, Defendant-Appellee.
• Court: Court of Appeal of Louisiana (US)

Page 242

146 So.2d 242

Paul O. LEE, Plaintiff-Appellant, v. Egan N. CARROLL, Defendant-Appellee.

No. 659.

Court of Appeal of Louisiana, Third Circuit.

Nov. 5, 1962.

Domengeaux & Wright, by Bob F. Wright, Lafayette, for plaintiff-appellant.

Bean & Rush, by Warren D. Rush, Lafayette, for defendant-appellee.

Before TATE, SAVOY, and HOOD, JJ.

TATE, Judge.

The plaintiff Lee obtained a judgment in Hancock County, Mississippi, against the defendant Carroll, a resident of Lafayette Parish, Louisiana, for property damage caused by an automobile accident in Mississippi. By this suit, Lee seeks to have the Mississippi decree recognized and made the judgment of a Louisiana court. LSA-C.C.P. Art. 2541.

The trial court dismissed the present suit, and Lee appeals. (We have previously overruled a motion to dismiss the appeal. La.App., 143 So.2d 417.)

Carroll's defense is that the Mississippi judgment was obtained against him through fraud and ill practice. He claims that he intended to contest the suit in Mississippi, but that he did not do so because he was misled by the plaintiff Lee.

The trial court found the following facts:

'The evidence shows that there were negotiations looking toward a compromise and that on March 11, 1960 he (the defendant Carroll) received a telegram from Lee's Mississippi attorney to the effect that the case would be continued until further notice to Carroll. According to Carroll's testimony he never again heard from the Mississippi attorney until that attorney notified him that a judgment had been taken. * * * (T)he Court does not feel that there is sufficient evidence in the record to refute the positive denial of Mr. Carroll to the effect that he never received notice of the intention of Lee's attorney to proceed with the Mississippi suit.'

In the absence of admissible contradictory evidence, we find no error in the trial court's accepting Carroll's testimony as true.

Aside from factual contentions, the plaintiff-appellant primarily contends that the final judgment by a competent court of a sister state is conclusive of the matters therein determined and must be given full faith and credit. Hockaday v. Skeggs, 18 La.Ann. 681; West Feliciana R. Co. v. Thornton, 12 La.Ann. 736, 68 Am.Dec. 778. It is also argued that the trial court was in error in permitting a collateral attack on the judgment by admitting evidence of fraud. Hockaday v. Skeggs, above-cited.

Generally speaking, a valid judgment of the court of a sister state cannot be collaterally attacked, when the foreign court had jurisdiction of the subject matter and of the parties. 50 C.J.S. Judgments §§ 868 (p. 442), 874 (p. 449), 889 (p. 470). However, fraud in obtaining the foreign judgment is a valid defense to a suit for its recognition in another jurisdiction; in general, the judgment may be attacked for fraud in its procurement, at least when such fraud could be set up against a domestic judgment in an action in the state of rendition. 50 C.J.S. Judgments §§ 874b. (p. 450), 895 (p. 511); Annotation, 'Fraud as defense to action on judgment of sister state,' 55 A.L.R.2d 673.

As these authorities note, the type of fraud available as a defense to the judgment is that which prevented the setting up of an effective defense or which prevented an adversary trial of the issues--so called 'extrinsic' fraud practiced in the very act of obtaining the judgment, collateral to the issues tried by the original action. On the other hand, defenses relating to the allegedly fraudulent character of the original cause of action ('intrinsic fraud') may not be used as a bar to enforcement of the foreign judgment. ¹ See also: Annotation, 'Criterion of extrinsic fraud as distinguished from intrinsic fraud * * *', 88 A.L.R. 1201; 49 C.J.S. Judgments § 434 (p. 859); 30A Am.Jur. 'Judgments', Section 784 (p. 725).

Both in Mississippi (Hirsch Brothers & Co. v. R. E. Kennington Co., 155 Miss. 242, 124 So. 344, 88 A.L.R. 1; McCraney v. New Orleans & N.E.R. Co., 128 Miss. 248, 90 So. 881; Weems v. Vowell, 122 Miss. 342, 84 So. 249) and in Louisiana (Lazarus v. McGuirk, 42 La.Ann. 194, 8 So. 253; Shneckenberger v. John Bonura & Co., 14 La.App. 692, 130 So. 870; see also: Alonso v. Bowers, 222 La. 1093, 64 So.2d 443; Hall v. Hall, La.App., 127 So.2d 347), a domestic judgment may be held to be unenforceable because of extrinsic fraud used in obtaining it. In Louisiana and in most jurisdictions in which the question has arisen, it has been held that a valid defense to a suit to enforce a foreign judgment is that the judgment was obtained by the plaintiff in violation of an agreement not to take a judgment against the defendant or not to take any further action without notifying the defendant, such ill practice constituting extrinsic fraud which prevented the defendant from setting up any valid defense he may have had to the cause of action. Richardson v. Helis, 192 La. 856, 189 So. 454, 455; see also cases cited at Annotation, 55 A.L.R.2d 683, 696 (Section 10) et seq.; Britton v. Gannon, Okl., 285 P.2d 407, 55 A.L.R.2d 667, cert. denied, 350...